When Does the Clock Start Running on a Legal Malpractice Claim?
- posted: May 15, 2022
- Professional Malpractice
Attorneys are only human and it is possible that your lawyer made a serious mistake or gave you poor advice that caused you to suffer a negative outcome in your case. If you are disappointed with the result of a matter you entrusted to an attorney, you may have a legal malpractice cause of action. An important question is how long you have to sue.
In Kentucky, the statute of limitations requires an injured party to sue within one year from the date of the occurrence of professional malpractice or from the date when the malpractice was discovered or reasonably should have been discovered. But this can be a difficult standard to apply, since legal errors are often not readily apparent to lay people.
Fortunately, a few Kentucky Supreme Court opinions have fleshed out the contours of this standard in a way that is intended to protect the rights of clients while avoiding unnecessary legal malpractice litigation.
First, the court has held that legal malpractice doesn’t occur until the lawyer’s negligence hurts the client in a way that is not speculative and can’t be reversed. Generally, this means that you can’t sue until you are out of normal remedies for correcting the error. For instance, in cases where the lawyer allegedly mishandled litigation, the court has said that the malpractice didn’t occur until the client’s right to appeal was exhausted.
Secondly, the court applies the “continuous representation” rule, which delays the start of the limitations period until after the relationship with the attorney ends. One rationale for this rule is that you can’t be expected to discover the legal malpractice as long as the attorney who committed malpractice is the one advising you. Often times, you are not in a position to know whether the attorney is doing a bad job or is merely faced with a bad case or an obstinate judge.
This rule also gives attorneys the opportunity to correct their mistakes. A legal malpractice lawsuit is a poor substitute for pursuing a still winnable case. This doesn’t mean you are required to stick with an attorney who you believe is not doing their job properly. You are entitled to seek better representation if you can. However, the rule is meant to give the client and the attorney the opportunity to solve the problem before the mistake becomes irreversible.
Hemmer DeFrank Wessels, PLLC has the knowledge and experience to represent you in a professional malpractice suit if you believe that you might be the victim of an attorney’s error that caused you harm. Call us at 859-344-1188 or contact us online to schedule a consultation in our Fort Mitchell, Kentucky office.